Citation Nr: 9901412
Decision Date: 01/21/99 Archive Date: 02/01/99
DOCKET NO. 97-18 243 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUES
1. Entitlement to service connection for degenerative
arthritis of the elbows on a direct basis or, in the
alternative, as a disability due to undiagnosed illness
manifested by elbow pain.
2. Entitlement to service connection for an acquired
psychiatric disorder on a direct basis or, in the
alternative, as a disability due to undiagnosed illness
manifested by insomnia.
3. Entitlement to service connection for a disability
manifested by shortness of breath on a direct basis or, in
the alternative, as a disability due to undiagnosed illness.
4. Entitlement to service connection for a disability
manifested by shoulder pain, on a direct basis or, in the
alternative, as a disability due to undiagnosed illness.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
P.M. DiLorenzo, Counsel
REMAND
The veteran served on active duty from July 1964 to July 1968
and from September 1990 to May 1991. He served in the
Southwest Asia theater of operations during the Persian Gulf
War, from November 1990 to April 1991. He had active duty
for training from January to June 1984.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from an October 1995 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Montgomery, Alabama, that denied entitlement to service
connection for arthralgia of the shoulders, a lung disorder,
insomnia, and degenerative arthritis of the elbows.
In November 1994, Congress enacted the Veterans Benefit
Improvement Act of 1994 (P.L. 103-446) to provide
compensation for Persian Gulf War veterans with undiagnosed
illnesses. This Act added 38 U.S.C.A. § 1117 to the U.S.
Code effective November 2, 1994. In response, VA amended the
Adjudication section of Title 38 of the Code of Federal
Regulations regarding the criteria for compensation for
certain disabilities due to undiagnosed illnesses. 38 C.F.R.
§ 3.317 (1998). This amendment was effective during the
pendency of this claim. See 60 Fed. Reg. 6665 (February 3,
1995). Under the new criteria, a Persian Gulf War veteran
who served in the Southwest Asia theater of operations can be
granted service connection for chronic disabilities resulting
from an undiagnosed illness or combination of illnesses
manifested by certain listed symptoms.
The veteran served in the Southwest Asia theater of
operations from November 1990 to April 1991. He is
contending that his claimed conditions were incurred as a
result of his military service during the Persian Gulf War.
The regulations list joint pain, signs and symptoms involving
the respiratory system, and sleep disturbances as possible
manifestations of an undiagnosed illness. See 38 C.F.R.
§ 3.317(b) (1998). The new regulations were not addressed by
the RO in the October 1995 rating decision. The veteran has
not been given notice of the new regulations and has not had
an opportunity to submit evidence and argument related to the
new regulations. Therefore, the Board finds it is
appropriate to remand his claim to the RO. See Bernard v.
Brown, 4 Vet. App. 384 (1993). The RO should evaluate his
claim for service connection for elbow and shoulder pain,
shortness of breath, and insomnia under the new regulations
regarding compensation for undiagnosed illness and under the
regulations for direct service connection.
It also appears that the RO has not obtained the veteran’s
complete service medical records. His service medical
records from his first period of service from July 1964 to
July 1968 are not of record. The National Personnel Records
Center (NPRC) suggested that these records be requested
separately in August 1996. There might also be additional
Army Reserve medical records dated subsequent to 1991.
Additional development is required in this regard.
A VA examination(s) would also be beneficial in assessing the
diagnosis of any current shoulder, respiratory, or sleep
disorders.
Accordingly, while the Board regrets the delay, this claim is
REMANDED to the RO for the following:
1. Contact the NPRC or any other
indicated agency and request the veteran’s
complete service medical records,
including those from his first period of
service from July 1964 to July 1968 and
any additional Army Reserve medical
records, i.e., dated subsequent to 1991.
2. Request that the veteran provide a
list of those who have treated him for
elbow and shoulder pain, shortness of
breath, and insomnia since 1994 and
releases for their records. Request all
records of any treatment reported by the
veteran that are not already in the
claims file. The Board is particularly
interested in any treatment received at
any VA facilities, including those in
Birmingham, Montgomery and Tuskegee,
Alabama. With respect to any VA records,
all records maintained are to be
requested, to include those maintained in
paper form and those maintained
electronically (e.g., in computer files)
or on microfiche.
If requests for any private treatment
records are not successful, tell the
veteran and his representative so that
the veteran will have an opportunity to
obtain and submit the records himself, in
keeping with his responsibility to submit
evidence in support of his claims. 38
CFR 3.159(c).
3. Afford the veteran an appropriate VA
examination(s) in order to determine the
exact nature of any current shoulder and/or
respiratory disorder, and any disability
manifested by insomnia. The claims folder
and a copy of this remand are to be made
available to the examiner prior to the
examination, and the examiner is asked to
indicate that he or she has reviewed the
claims folder.
The examiner should render diagnoses of
all current shoulder and respiratory
disorders exhibited by the veteran, and
any disability manifested by insomnia.
All necessary tests in order to determine
the correct diagnoses are to be done. If
no such disorders are found, the examiner
should so state.
If there are any objective indications of
shoulder and respiratory problems or
sleep disorders that cannot be attributed
to any organic or psychological cause,
the examiner should so state. The
examiner should identify any abnormal
symptoms, abnormal physical finding, and
abnormal laboratory test results that
cannot be attributed to a known clinical
diagnosis.
The examiner must provide a comprehensive
report including complete rationales for
all opinions and conclusions reached,
citing the objective medical findings
leading to the examiner’s conclusions. If
further testing or examination by other
specialists is determined to be warranted
in order to evaluate the condition(s) at
issue, such testing or examination is to
be accomplished prior to completion of the
examination report.
4. Review the claims folder and ensure
that all of the foregoing development
actions have been conducted and completed
in full. If any development is
incomplete, appropriate corrective action
is to be implemented. Specific attention
is directed to the examination report(s).
If the requested examination(s) does not
include fully detailed descriptions of
pathology and all test reports, special
studies or adequate responses to the
specific opinions requested, the report(s)
must be returned for corrective action.
38 C.F.R. § 4.2 (1998); see also Stegall
v. West, 11 Vet. App. 268 (1998).
5. Readjudicate the veteran’s claims on
appeal, with application of all
appropriate laws and regulations, and
consideration of any additional
information obtained as a result of this
remand. In particular, the RO should
evaluate the claims for service
connection for the claimed disabilities
under 38 C.F.R. § 3.317. If the decision
with respect to the claims remains
adverse to the veteran, he and his
representative should be furnished a
supplemental statement of the case, which
includes the criteria regarding service
connection for undiagnosed illnesses, and
be given a reasonable period of time
within which to respond thereto.
Thereafter, the claim is to be returned to the Board,
following applicable appellate procedure. The veteran need
take no action until he is so informed. He is, however, free
to submit additional evidence or argument to the RO on
remand. Quarles v. Derwinski, 3 Vet. App. 129 (1992); Booth
v. Brown, 8 Vet. App. 109 (1995); and Falzone v. Brown,
8 Vet. App. 398 (1995).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (Historical and Statutory Notes) (West Supp. 1998).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been
remanded by the Board and the Court. See M21-1, Part IV,
paras. 8.44-8.45 and 38.02-38.03.
J. SHERMAN ROBERTS
Member, Board of Veterans’ Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans’ Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1998).
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